196

C A N A D A

PROVINCE OF QUEBEC

IN THE MATTER OF A DISPUTE IN BETWEEN :

__________________________________________

CNCP TELECOMMUNICATIONS

- a n d -

CANADIAN ASSOCIATION OF COMMUNICATIONS

AND ALLIED WORKERS

GRIEVANCES : PERREAULT AND VALLÉE

Sole Arbitrator : René Lippé, Q.C.

Attorney for the Company : Martin J. Adario, Lawyer

Attorney for the Association : Pierre Grenier, Lawyer

________________

TO : CNCP TELECOMMUNICATIONS,

740 Notre Dame Street West

Montreal, Qc

TO : CANADIAN ASSOCIATION OF COMMUNICATIONS

AND ALLIED WORKERS,

15 Collier Street

Suite 201

Barrie, Ontario

Both grievors, Mr. Y. Vallée and Mr. R. Perreault, Equipment Technicians, Ottawa, Ontario were subject to lay-off from their Equipment Technicians position in Montreal, as a result of a staff reduction on February 15th, 1983 (Exhibit U-3). This was amended consequently to February the 24th, 1983 (Exhibit U-7). The grievors filed the following grievance dated March 11, 1983 (Exhibit U-9).

11 mars 1983

R. Gervais

Directeur régional

740 Notre-Dame O.

Montréal

5ième étage

ETAT DE GRIEF CONTRE :

Le fait que la Compagnie (CNCP Télécommunication) nous

refuse les bénéfices de la sécurité d’emploi.

(S) RENÉ PERREAULT (S) YVAN VALLÉE

SRB 3014 SRB 3013

The two (2) grievances are similar in nature and arise out of the fact that the grievors were denied lay-off benefits at the location of their lay-off (Montreal) and were forced to displace outside of their basic job security eligibility territory (Ottawa). That is the issue.

It was admitted : -

1° That the grievors were not laid-off because of the technological, operational or organizational change (Clause 10.4 c) of the Collective Agreement);

2° That Ottawa is outside the grievors job security eligibility territory but within their seniority district (Clause 4.1 of the Collective Agreement).

The parties have also agreed for the Arbitrator to render a Declaratory Award, the Arbitrator keeping jurisdiction on the question of quantum, if need be.

At the hearing, the Attorney for the Company declared that the Company was not pursuing its objection as stated at Step 2, that the grievance was filed improperly under the provisions of Article 24 of the Collective Agreement.

The problem in the present instance is two-fold :

A) Are the Plaintiffs obliged to displace under their jobs to be eligible to the benefits of the Job Security Agreement (Article 5 of Exhibit U-2) ;

B) Are the Plaintiffs required to displace outside their basic job security eligibility territory (Montreal) or within their seniority and promotion district (Ottawa).

The Company contends that to collect job security benefits an employee must exercise all his rights to displace under the pertinent dispositions of the Collective Agreement and the Job Security Agreement, and until this is done, no employee can collect such a benefit. It was agreed that Exhibit U-2 is a Supplemental Agreement to the Collective Agreement which purpose amongst other things, is to provide certain benefits under certain conditions to employees laid-off.

Article 10.7 of the Collective Agreement implies that a displacement is a must by stating that those employees who do not wish to exercise any of the options listed in Article 10.4 and therefore electing voluntary lay-off, will not be eligible to participate in benefits from the Job Security Fund (Exhibit U-2).

The Attorney for the Company submits that for an employee to refuse to exercise his bumping right, is contrary to the general public interest and for that matter, to the Company’s interest.

I think that this is a sound principle.

Article 1-E of Appendix "B" (Exhibit U-2 - page 39) states very clearly that to be eligible for a benefit payment one has to exercise full seniority rights as provided for in the Collective Agreement.

All in all, it is my opinion that in this case, the grievors had to exercise their full seniority rights, as provided for in the relevant Collective Agreement clauses ; in other words, they had to displace.

This is the area of the basic disagreement between the parties.

It is not difficult to understand why the two (2) parties are at arm’s length on that matter as there is a clear-cut contradiction between the Collective Agreement and the Job Security Program. Therefore, one is hardly surprised that the parties had to resort to arbitration for resolution of this problem.

The parties, at Article 4.1 of the Collective Agreement, have defined the basic seniority territories. The Quebec District comprises : the Province of Quebec, the Province of Ontario, East of and including Brockville and Ottawa. These seniority territories which cover the country from coast to coast are all premised on districts.

Article 10.4-(a) -3 states the following :

"10.4 An employee in the Technical Groupings whose position is abolished or who is displaced will,

qualifications being sufficient, have the option of :

(a) Exercising previously established grouping

seniority to :

1. .....

3. displace the junior in the district in any Technical

grouping or Non-Technical Classification".

Here again, the term "district" is used.

The Grievors fall under the heading of Technical grouping.

Article 10.4-(c) says that when an employee is displaced as a result of a technological change, he must exercise his grouping seniority within his job security eligibility "territory". This is the only instance where the word "territory" is used in the Collective Agreement in connection with bumping operations.

On the other hand, Exhibit U-2 (Job Security Agreement) states the following at Appendix B - page 39 - Clause 1-(e) :-

"1. An employee who is not disqualified under Clause 4 hereof, shall be eligible for a benefit payment in respect of each full week of seven consecutive calendar days of layoff (herein called ‘a claim week’) or to a severance payment provided he meets all of the following requirements :

(a) .....

(e) He has exercised full seniority rights on his basic seniority territory as provided for in the relevant collective agreement, except as otherwise expressly provided in Clause 4, paragraphs (b) and (c) of this Appendix ‘B’.

The last part of Paragraph (e) is not relevant to the issue. This Clause clearly uses the word "territory" but qualifies it with the words "as provided for in the relevant Collective Agreement". These words "basic seniority territory" used above are defined in a Note which is the following at page 41 of the same Appendix :-

"NOTE

‘Basic seniority territory’ as referred to in Clause 1, paragraph (e) and Clause 4, paragraph (c) of this Appendix ‘B’ shall be those Job Security Eligibility territories as defined in Appendix ‘F’ of this Agreement together with the rules pursuant thereto".

The Attorney for the Employer submits that the wording of this Note makes no sense and is incompatible with the terms of Clause 1-(e) of Appendix "B" at page 39 and above referred to.

I agree with the Employer’s Attorney as a simple reading of Clause 1-(e) and the Note will bear to that.

By any stretch of the imagination, this is not an easy matter to decide. In spite of the contradiction, it is my opinion that the whole scheme of "lay-off" is based on the "District" concept except if otherwise stipulated. The parties, at Article 4.1, have defined their basic seniority territories on the notion of "District". There is no misunderstanding that it represents the intent of the parties: that makes sense.

The evidence showed that generally speaking, a territory is an area bigger than that of a district and it would be very strange indeed if the parties had agreed to narrower areas (territories) in cases of lay-offs, which, most of the time if not always, are the cause of a scramble for jobs.

Likewise, Article 10.4-(a) -3 calls for an employee who is displaced, to displace the junior in the "district" in any technical grouping. That is also clear, the only exception being when the bumping occurs as a result of a technological change. Then, 10.4-(c) obliges the employee thus displaced to displace the junior employee in a technical grouping within the job security eligibility territory.

FOR THESE REASONS, I prefer the notion of "district" as reflecting the intent of the parties. I think and I hope that this interpretation will provide the greatest efficiency or the least inconveniences in the operation of the Collective Agreement.

Therefore, my conclusions are : -

1° In the present case, the grievors were obliged to displace to be eligible to the benefits of the Job Security Agreement :

2° They had to displace the junior within their seniority district which is Ottawa and not Montreal as they have done or tried to do.

THE WHOLE RESPECTFULLY SUBMITTED,

MONTREAL, this 31st day of July 1984.

______________________________

René Lippé, Q.C., Sole Arbitrator